Social Media and the Law

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Session from the ERE Expo Spring 2011, presented by Mary Wright

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Social Media and the Law

  1. 1. Social Media and the LawPresented By:Mary E. WrightGeneral Counsel & Shareholder415-536-3431mary.wright@ogletreedeakins.com
  2. 2. Agenda What Social Networks* Do Recruiters Use?EMPLOYERS & LAWYERS, WORKING TOGETHER *a very brief overview. FIRST CLASS SERVICE, COAST TO COAST
  3. 3. Agenda How Do Recruiters Use Social Networks?EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST
  4. 4. Agenda What Legal Issues Do Recruiters Encounter?EMPLOYERS & LAWYERS, WORKING TOGETHER FIRST CLASS SERVICE, COAST TO COAST
  5. 5. Agenda What Should the Company Policy SayEMPLOYERS & LAWYERS, WORKING TOGETHER About Recruiting On Social Networks? FIRST CLASS SERVICE, COAST TO COAST
  6. 6. What Social Networks Do Recruiters Use? Social, Friendship,EMPLOYERS & LAWYERS, WORKING TOGETHER Invitation-based Networks Professional, Career-based Networks Personal/Affinity or Company Blogs FIRST CLASS SERVICE, COAST TO COAST
  7. 7. How Do Recruiters Use Social Networks? Find Active CandidatesEMPLOYERS & LAWYERS, WORKING TOGETHER 1.  2.  Find Passive Candidates 3.  Promote Company to Attract Candidates 4.  Peer Regression to Source Candidates FIRST CLASS SERVICE, COAST TO COAST
  8. 8. What Legal Issues Do Recruiters Encounter?EMPLOYERS & LAWYERS, WORKING TOGETHER n  Privacy n  Background Checks n  Unauthorized Access n  Union Organizing Efforts n  Astroturfing & Sock Puppets n  Unusable Information FIRST CLASS SERVICE, COAST TO COAST
  9. 9. What Legal Issues Do Recruiters Encounter?EMPLOYERS & LAWYERS, WORKING TOGETHER n  U.S. Constitution, 4th Amendment n  Prohibits unreasonable searches and seizures n  U.S. Constitution, 1st Amendment n  Prohibits retaliation for speaking matters of public concern n  California Constitution: Article I, § 1 n  Personal, medical, financial, arrest, and employment records Privacy FIRST CLASS SERVICE, COAST TO COAST
  10. 10. What Legal Issues Do Recruiters Encounter?EMPLOYERS & LAWYERS, WORKING TOGETHER n  Definition of Privacy: "the quality of being secluded from the presence or view of others What is secluded from view on the Internet? If it is accessible, is it really private? Privacy FIRST CLASS SERVICE, COAST TO COAST
  11. 11. What Legal Issues Do Recruiters Encounter?EMPLOYERS & LAWYERS, WORKING TOGETHER Reasonable Expectation of Privacy Employer Sets Expectations in the Workplace Individual Sets Expectations on the Internet Privacy FIRST CLASS SERVICE, COAST TO COAST
  12. 12. What Legal Issues Do Recruiters Encounter? n  Social Networking s Definition of Privacy:EMPLOYERS & LAWYERS, WORKING TOGETHER "an individuals right to determine: (a) what information they would like others to know about themselves; (b) which people are permitted know that information; and (c) the ability to determine when those people can access that information." -- Elias Bizannes (OpenWeb Foundation, Australia) Privacy FIRST CLASS SERVICE, COAST TO COAST
  13. 13. What Legal Issues Do Recruiters Encounter?EMPLOYERS & LAWYERS, WORKING TOGETHER Terms of Service (TOS) create "reasonable expectation of privacy on the Internet Determine which Networks Your Company Will Use Learn the TOS for that Network Privacy FIRST CLASS SERVICE, COAST TO COAST
  14. 14. What Legal Issues Do Recruiters Encounter? Facebook Users can block access toEMPLOYERS & LAWYERS, WORKING TOGETHER personal information through onerous opt-out procedure**** Twitter Searchable by e-mail, no privacy between members for any tweet ****Although Facebook makes a lot of noise about privacy: (a) it s hard to understand their rules; and (b) it doesn t apply to Apps. So is expectation of privacy reasonable? Privacy FIRST CLASS SERVICE, COAST TO COAST
  15. 15. What Legal Issues Do Recruiters Encounter?EMPLOYERS & LAWYERS, WORKING TOGETHER Google Buzz G-mail contact lists are indexed by Google LinkedIn Fully searchable by members, access to connections MySpace Members can search for other members but full blog may be password protected Privacy FIRST CLASS SERVICE, COAST TO COAST
  16. 16. What Legal Issues Do Recruiters Encounter?EMPLOYERS & LAWYERS, WORKING TOGETHER So, if information is accessible does that mean you can use it to make an adverse hiring decision? Not necessarily! Privacy FIRST CLASS SERVICE, COAST TO COAST
  17. 17. What Legal Issues Do Recruiters Encounter? Background ChecksEMPLOYERS & LAWYERS, WORKING TOGETHER n  Performed by Third Parties l  Background Check Companies l  Recruiters n  If it is part of a service for which employer pays – 3rd party rules n  Performed by Employer l  In House Human Resources l  In House Recruiting Employee l  In House Counsel Background Checks FIRST CLASS SERVICE, COAST TO COAST
  18. 18. What Legal Issues Do Recruiters Encounter?EMPLOYERS & LAWYERS, WORKING TOGETHER n  Definitions n  Using Consumer Reports n  Using Investigative Consumer Reports n  California Specific Information n  Cost of Non-Compliance Background Checks FIRST CLASS SERVICE, COAST TO COAST
  19. 19. What Legal Issues Do Recruiters Encounter? Definitions:EMPLOYERS & LAWYERS, WORKING TOGETHER n  Consumer Report n  Investigative Consumer Report n  Consumer Reporting Agency n  Employer-Obtained Information n  Adverse Action n  Employment Purposes Background Checks FIRST CLASS SERVICE, COAST TO COAST
  20. 20. What Legal Issues Do Recruiters Encounter? Using Consumer ReportsEMPLOYERS & LAWYERS, WORKING TOGETHER n  Make Full Disclosure n  Obtain Authorization n  Certify Compliance to CRA n  Provide Copy to Subject n  Give Written Notice l  Before Adverse Action l  At Adverse Action Background Checks FIRST CLASS SERVICE, COAST TO COAST
  21. 21. What Legal Issues Do Recruiters Encounter?EMPLOYERS & LAWYERS, WORKING TOGETHER Using Investigative Consumer Reports n  All of the Above and n  Response to Request for More Information l  Response within 5 Days l  Provide A Summary of Your Rights Under the Fair Credit Reporting Act - FTC Background Checks FIRST CLASS SERVICE, COAST TO COAST
  22. 22. What Legal Issues Do Recruiters Encounter? California Specific InformationEMPLOYERS & LAWYERS, WORKING TOGETHER n  Must obtain Authorization n  No case law requiring separate authorizations n  California may or may not permit continuing Authorization n  Does require check the box form Background Checks FIRST CLASS SERVICE, COAST TO COAST
  23. 23. What Legal Issues Do Recruiters Encounter? California Specific InformationEMPLOYERS & LAWYERS, WORKING TOGETHER l  Restrictions on Criminal Information n  Older than 7 Years n  Certain Types of Crimes Background Checks FIRST CLASS SERVICE, COAST TO COAST
  24. 24. What Legal Issues Do Recruiters Encounter? n  Cost of Non-ComplianceEMPLOYERS & LAWYERS, WORKING TOGETHER n  Liability l  Negligent Failure l  Willful Failure l  Knowing Violation l  False Pretences Never mislead or misrepresent. Background Checks FIRST CLASS SERVICE, COAST TO COAST
  25. 25. What Legal Issues Do Recruiters Encounter? n  Possible Limitation on LiabilityEMPLOYERS & LAWYERS, WORKING TOGETHER l  Reasonable Procedures l  Followed Every Time l  Discipline for Failure l  Maintain Records l  Train Background Checks FIRST CLASS SERVICE, COAST TO COAST
  26. 26. What Legal Issues Do Recruiters Encounter?EMPLOYERS & LAWYERS, WORKING TOGETHER Stored Communications Act l  Prohibits unauthorized intrusions of stored electronic information l  Provider exception with notice to users §  A recruiter cannot intentionally access stored electronic communications without authorization §  Pietrylo v. Hillstone Rest. Group d/b/a Houston s (D.N.J., No. 06-5754, jury verdict 6/16/09) Unauthorized Access FIRST CLASS SERVICE, COAST TO COAST
  27. 27. What Legal Issues Do Recruiters Encounter? National Labor Relations Act: Protected SpeechEMPLOYERS & LAWYERS, WORKING TOGETHER l  Affords employees the right to engage in concerted activity collective activity n  A recruiter cannot make a hiring decision based upon concerted protected activity. l  Konop v. Hawaiian Airlines, 302 F.3d 868 (9th Cir. 2002) Labor Organizing Efforts FIRST CLASS SERVICE, COAST TO COAST
  28. 28. What Legal Issues Do Recruiters Encounter? AstroturfingEMPLOYERS & LAWYERS, WORKING TOGETHER •  Corporate sponsorship of grassroots activity •  False community action Sock Puppets •  Online identity for deception of community •  Praise, defend, support site and purpose Used on Corporate/Affinity Site Fake Testimonials FIRST CLASS SERVICE, COAST TO COAST
  29. 29. What Legal Issues Do Recruiters Encounter? Not PrivateEMPLOYERS & LAWYERS, WORKING TOGETHER Accessible Properly Obtained Now can you use information from the Internet? Not necessarily! FIRST CLASS SERVICE, COAST TO COAST
  30. 30. What Legal Issues Do Recruiters Encounter? Your social media search uncovers the candidate:EMPLOYERS & LAWYERS, WORKING TOGETHER 1.  is a member of a protected class. Unusable Information FIRST CLASS SERVICE, COAST TO COAST
  31. 31. What Legal Issues Do Recruiters Encounter? Your social media search uncovers the candidate:EMPLOYERS & LAWYERS, WORKING TOGETHER 1.  is a member of a protected class. 3.  has financial problems. Unusable Information FIRST CLASS SERVICE, COAST TO COAST
  32. 32. What Legal Issues Do Recruiters Encounter? Your social media search uncovers the candidate:EMPLOYERS & LAWYERS, WORKING TOGETHER 1.  is a member of a protected class. 3.  has financial problems. 5.  has an arrest record. Unusable Information FIRST CLASS SERVICE, COAST TO COAST
  33. 33. What Legal Issues Do Recruiters Encounter? Your social media search uncovers the candidate:EMPLOYERS & LAWYERS, WORKING TOGETHER 1.  is a member of a protected class. 3.  has financial problems. 5.  has an arrest record. 6.  has filed Workers compensation claims. Unusable Information FIRST CLASS SERVICE, COAST TO COAST
  34. 34. What Legal Issues Do Recruiters Encounter? Your social media search uncovers the candidate:EMPLOYERS & LAWYERS, WORKING TOGETHER 1.  is a member of a protected class. 3.  has financial problems. 5.  has an arrest record. 6.  has filed Workers compensation claims. 7.  has a medical condition or disability. Unusable Information FIRST CLASS SERVICE, COAST TO COAST
  35. 35. What Legal Issues Do Recruiters Encounter? Your social media search uncovers the candidate:EMPLOYERS & LAWYERS, WORKING TOGETHER 1.  is a member of a protected class. 3.  has financial problems. 5.  has an arrest record. 6.  has filed Workers compensation claims. 7.  has a medical condition or disability. 8.  complained about her former boss. FIRST CLASS SERVICE, COAST TO COAST
  36. 36. What Should the Company Policy Say About Recruiting On Social Networks? 1.  Define the job and what information is relevant to it.EMPLOYERS & LAWYERS, WORKING TOGETHER 2.  Identify the sites you will review to obtain relevant info . 3.  Read, understand, comply with site s TOS. 4.  Never misrepresent yourself to gain access. 5.  Never coerce another to obtain access. 6.  Document all sites visited. 7.  Store only usable information with application. 8.  Insulate decision-maker from raw data. 9.  Base decisions only on usual information. 10.  Train recruiters, publish policy, advise decision-makers. FIRST CLASS SERVICE, COAST TO COAST
  37. 37. Social Media and the LawPresented By:Mary E. WrightGeneral Counsel & Shareholder415-536-3431mary.wright@ogletreedeakins.com

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